Oz Court Decision on Refugees Creates a Quandary

The decision Wednesday by Australia’s highest court to void the so-called “Malaysia Solution,” in which Australia would swap refugees with Malaysia, leaves both countries in a continuing quandary.

Under the policy, announced by Prime Minister Julia Gillard in May, Australia would have accepted 4,000 certified refugees from Malaysia, most of them Christian or Buddhist Burmese, in exchange for 800 asylum seekers who were to be sent to Malaysia. The 4,000 that Australia wished to trade, including unaccompanied children, are currently held on Christmas Island, 2,750 km from Darwin. They are believed to be mostly Muslims. The scheme was an attempt to stem a continuing influx into Australia from poverty-stricken or war-torn countries, particularly Afghanistan and Sri Lanka.

The idea behind the swap – to be paid for by the Australian government – was to both seek to come up with a regional solution and to put an end to dangerous boat trips. However, the scheme ran afoul of the fact that Malaysia, like many other Southeast Asian nations, is not a signatory to the United Nations Convention on Refugees and thus, according to lawyers arguing in the High Court against the plan, there was no way to guarantee that the refugees to be swapped would be treated humanely. The decision also appears to doom Australian plans to send some refugees to Manus Island, a part of Papua New Guinea, or anyplace else in Southeast Asia. East Timor has also been suggested as a processing option.

The swap, of a total of just 4,800 refugees, is only a small part of a major problem, as poor or oppressed Asians, like their millions of counterparts from Latin America and Africa who are seeking to get into the United States or the Eurozone, have acquired both the knowledge that there are better places to live out there, and the ambition and means to get there. Senior Asian and European officials are to meet next week in Ulan Bator, Mongolia, next week to discuss the challenge of dealing with immigration and attempts to prevent trafficking.

Malaysia and Australia are perhaps the two biggest magnets for refugees in Asia – Australia because it is a tidy, resource-rich country with an annual per-capital gross domestic product by purchasing power parity of US$41,000, Malaysia because it sits next to Indonesia, which is neither tidy nor rich. Malaysia’s GDP by PPP is US$14,700 annually, three times that of Indonesia’s at US$4,200. Malaysia’s borders, especially in East Malaysia where it abuts the Indonesian province of Kalimantan not to mention across the Strait of Malacca, are porous.

There are believed to be as many as 2 million Indonesian illegal migrants or more – some estimates go as high as 3 million -- living and working in Malaysia. Tens of thousands more have arrived from Burma. The Indonesians have raised the political temperature not only because they might now make up more than 10 percent of the country’s population of 28.3 million but because the Chinese and Indian ethnic minorities have accused the government of seeking to register them as citizens to tilt the always-sensitive racial balance in favor of ethnic Malays. The government periodically initiates crackdowns to attempt to send them home, to little avail. As in the west, most have crossed the border or the strait because they are willing to do the jobs that richer people won’t.

Likewise, immigration has been an issue for three decades in Australia, whose population is 22.6 million, because of the flood of migrants, and not just illegal ones. Some 300,000 new legal migrants had been expected to arrive in 2009 and 2009 before the government announced a 14 percent cut in intake and later cut back again. Unlike Malaysia, where the Indonesians are culturally and religiously akin to the majority of the locals, Australians, especially conservative ones, fear the new arrivals will change the complexion of the country.

According to a background note prepared for the Australian parliament, most undocumented aliens arrive in Australia by air and filter into the general population. There are believed to be as many as 100,000 of them in the country, many of them in white-collar jobs. But it is the boat people who have caused Australia’s biggest problem, fleeing political violence or poverty in Afghanistan, Sri Lanka, Indochina and other areas of Asia.

It is more an emotional problem. The boat people number a fraction of those who arrive by other means. In the seven years between 2001 and February 2008, only 1,637 people had been detained in facilities on the islands of Nauru and Manus. Of those, 70 percent were resettled in Australia or other countries. Untold hundreds of others are believed to have drowned.

Mandatory detention was introduced in 1992 by the Keating government and has been the law ever since, with the exception of a period between 1999 and 2002 and from the middle of 2009 to the present as boat arrivals have continued to increase.

The government has remained committed to mandatory detention, offshore processing, and if necessary turning the boats around at sea and sending them somewhere else, which resulted in a major controversy several years ago when 433 asylum seekers were rescued by a Norwegian freighter that was refused entry to Australia. The ship’s master, however, defied the order and did enter Australian waters. The refugees were eventually transferred to another ship and sent to Nauru.

That controversy gave rise to the so-called “Pacific solution,” in which the islands of Christmas, Ashmore, Cartier and Cocos were excised from the migration zone. Anybody seeking a visa to enter Australia from one of those islands was not allowed to do so unless the Immigration Minister determined it was in the public interest.

The Rudd and Gillard governments have sought since 2007 to come up with a different solution. According to a December, 2010, report, processing freezes on detainees “has placed significant pressure on immigration detention facilities.” The government responded by moving detainees from Christmas Island to mainland facilities. However, by December 2010, 25 percent of the detainees had been held for three to six months, and 40 percent of them had been there between six months and a year.

Thus the “Malaysia Solution,” announced in May, under which Australia would simply swap refugees it wanted to take in with those from Malaysia. That option is now probably off the table, along with any other Asian nations that have not signed the UN convention on refugees. Its failure at the hands of the court probably means facilities “rented” by the Australian government on the island of Nauru will have to be reopened to accommodate those who have arrived since the Malaysian Solution was signed.

The fallout for the Gillard government has been considerable, with the newly energized Conservatives claiming it was the latest in a long string of disasters that began years ago when the Rudd government first sought to change the policy. With the fleeing Afghans and Sri Lankans increasing in numbers, now the government is going to have to try to figure out where to put them.